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Superfunds February 2016
CASE 3
While the de facto relationship was of
a short duration, the individual was the
‘spouse’ of the deceased member and she
and her children were his ‘dependants’.
The de facto spouse had four children. She had
been living with the deceased member and her
children in a converted shed at her parents’
property for approximately seven months. He
was admitted to hospital (where he died) from
this home. The deceased also had a biological
13 year old daughter from another relationship.
His daughter was not living with him at the time
of his death, but had resided with him and his
de facto spouse in previous months. She had her
own mental health issues and medical evidence
indicated her needs were significant. Her mother
was unable to look after her and her father was
her sole guardian at the time of his death. She
was also the sole nominated beneficiary according
to the fund’s records and, at the time of the
Tribunal’s decision, it appeared she was homeless.
The trustee decided to pay 40 per cent of the
benefit to the New South Wales Trustee and
Guardian as trustee for the daughter, and the
remaining 60 per cent to the de facto spouse.
The daughter (with her grandfather being given
leave to represent her interests) lodged a complaint
on the grounds that the trustee’s decision to pay
an amount to the de facto spouse was unfair and
unreasonable. One of the submissions was that
even if the de facto status meant the deceased’s
partner was technically a dependant under the
trust deed, “the extent of her dependence was so
trivial as to be de minimis”.
The Tribunal noted that had the deceased not
formed a de facto relationship, almost seven
months before his death, his daughter would have
been his only dependant. It concluded that the
short duration of the relationship, the very limited
financial contribution made by the deceased to
the household expenses (his only income was
Centrelink benefits with little prospect of him
obtaining paid work), his ongoing responsibilities
to his daughter and her significant needs, resulted
in it being fair and reasonable for her to receive
a larger proportion of the death benefit. The
Tribunal concluded that the daughter should
receive 60 per cent and the de facto 40 per cent,
essentially reversing the trustee’s earlier decision.
D15--16\021